Mr. Speaker, in deciding whether to consent to the institution of proceedings under section 117 of the Immigration and Refugee Protection Act, prosecutors apply the test set out in Chapter 15 of the Federal Prosecution Service Deskbook entitled “The Decision to Prosecute”. First, the prosecutor must consider whether the evidence is sufficient to justify the institution of proceedings. If there is a reasonable prospect of conviction, the prosecutor must then consider whether the public interest requires a prosecution to be pursued. Not all offences for which there is sufficient evidence must be prosecuted. As the deskbook states, the proper decision in many cases will be to proceed with a prosecution if there is sufficient evidence available to justify a prosecution. Generally, the more serious the offence, the more likely the public interest will require that a prosecution be pursued.
In considering whether the public interest requires a prosecution, it is not a question of determining whether the factors listed in section 15.3.2 have been met. Rather the process is one of considering the general public interest with the factors listed, and the list is not exhaustive and the factors and their respective weight may vary from case to case, being taken into account to arrive at a general conclusion as to whether a prosecution is required.
The director of public prosecutions is accountable to the Attorney General of Canada for decisions made by federal prosecutors. Prosecutors are also accountable to the courts but the courts have indicated that they will not examine prosecutorial deliberations absent bad faith or flagrant impropriety. This is consistent with the principle of prosecutorial independence.¸
Generally, prosecutors do not publicly disclose details of their deliberations that touch upon a core element of prosecutorial discretion such as the decision to institute or stay proceedings. However, the deskbook does recognize that in certain cases, confidence in the administration of justice is strengthened by publicly communicating a general explanation for not prosecuting. The case of Ms. Hinshaw-Thomas falls into this category.
In deciding whether to prosecute Ms. Hinshaw-Thomas, the regional director followed the “Decision-to-Prosecute” policy in the deskbook. After reviewing the evidence initially presented by the investigators, he concluded that there was sufficient evidence to justify a prosecution. He then considered whether the public interest required a prosecution. He examined the factors set out in section 15.3.2 including the general public interest in prosecuting given that a prosecution was justified on the evidence presented by the investigators, the seriousness of the alleged offence, the circumstances surrounding the alleged offence, Ms. Hinshaw-Thomas’ alleged degree of responsibility for the offence, and the prosecution's likely effect on public confidence in the administration of justice. After considering the public interest based on the evidence before him, the regional director concluded that a prosecution was warranted.
After a charge had been laid, the investigators presented the regional director with new evidence. Consistent with his obligation to apply the evidentiary standard of “reasonable prospect of conviction” throughout the proceeding, the regional director reviewed the file in the light of this new evidence and concluded that the evidence no longer justified a prosecution. Given this conclusion, the public interest test did not enter into play. The proceedings were therefore stayed.